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The court wants to be neutral on moral and religious disputes over marriage, but finds that it can’t

By Harvard lecturer Michael Sandel:

Quoting from the lecture:

“This was in the Goodridge case, which required the state of Massachusetts to extend marriage to same-sex couples. The court started out… well, the court was conflicted. If you read that opinion carefully, the court was conflicted as between the two positions we’ve just been hearing, defended by Andréa and by Dan. The Court begins– and this is Chief Justice Margaret Marhsall’s opinion– it begins with an attempt at liberal neutrality. In other words, at issue is not the moral worth of the choice, but the right of the individual to make it. So this is the liberal neutral strand in the court opinion; the voluntarist strand, the one that emphasizes autonomy, choice, consent. But the court seemed to realize that the liberal case, the neutral case for recognizing same-sex marriage doesn’t succeed, doesn’t get you all the way to that position. Because if it were only a matter of respect for individual autonomy, if government were truly neutral on the moral worth of voluntary intimate relationships, then it should adopt a different policy, which is to remove government and the state altogether from according recognition to certain associations, certain kinds of unions rather than others. If government really must be neutral, then the consistent position is what we here have been describing as the third position– the one defended in the article by Michael Kinsley, who argues for the abolition of marriage, at least as a state function. Perhaps a better term for this is the disestablishment of religion. This is Kinsley’s proposal. He points out that the reason for the opposition to same-sex marriage is that it would go beyond neutral toleration and give same-sex marriage a government stamp of approval. That’s at the heart of the dispute. In Aristotle’s terms, at issue here is the proper distribution of offices and honors; a matter of social recognition. Same-sex marriage can’t be justified on the basis of liberal neutrality or non-discrimination or autonomy rights alone, because the question at stake in the public debate is whether same-sex unions have moral worth, whether they’re worthy of honor and recognition, and whether they fit the purpose of the social institution of marriage. So Kinsley says, ‘You want to be neutral?’ This is Kinsley. But this is not the position that the Supreme Judicial Court of Massachusetts wanted. They didn’t call for the abolition or for the disestablishment of marriage. The court did not question government’s role in conferring social recognition on some intimate associations rather than others. To the contrary, the court waxes eloquent about marriage as, ‘One of our community’s most rewarding and cherished institutions,’ and then it goes on to expand the definition of marriage to include partners of the same sex. And in doing so, it acknowledges that marriage is more than a matter of tolerating choices that individuals make; it’s also a matter of social recognition and honor. As Justice Marshall wrote: This is the court. Now, this is reaching well beyond liberal neutrality. This is celebrating and affirming marriage as an honorific, as a form of public recognition, and therefore, the court found that it couldn’t avoid the debate about the telos of marriage. Justice Marshall’s opinion considers and rejects the notion that the primary purpose of marriage is procreation. She points out that there’s no requirement that applicants for a marriage license who are heterosexuals attest to their ability or their intention to conceive children. Fertility is not a condition of marriage. People who cannot stir from their death bed may marry. So she advances all kinds of arguments, along the lines that we began last time, about what the proper end, the essential nature, the telos of marriage is. And she concludes: Now, nothing I’ve said about this court opinion is an argument for or against same-sex marriage, but it is an argument against the claim that you can favor or oppose same-sex marriage while remaining neutral on the underlying moral and religious questions. So all of this is to suggest that at least in some of the hotly contested debates about justice and rights that we have in our society, the attempt to be neutral, the attempt to say, ‘It’s just a matter of consent and choice and autonomy; we take no stand,’ that doesn’t succeed. Even the court, which wants to be neutral on these moral and religious disputes, finds that it can’t.”